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e-CFR
Data is current as of June 8, 2012

Title 29:
Labor

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PART 1913—RULES OF AGENCY PRACTICE AND PROCEDURE CONCERNING OSHA
ACCESS TO EMPLOYEE MEDICAL RECORDS

Section Contents
§ 1913.10   Rules
of agency practice and procedure concerning OSHA access to employee
medical records.

Authority:   Sec. 8, Occupational Safety
and Health Act of 1970 (29 U.S.C. 657); Sec. e, Privacy Act (5 U.S.C.
552a(e); 5 U.S.C. 301); Secretary of Labor's Order No. 8–76 (41 FR 25059),
or 5–2002 (67 FR 65008) as applicable.

§ 1913.10   Rules of agency practice and procedure
concerning OSHA access to employee medical records.

top

(a) General policy. OSHA access to employee medical records will
in certain circumstances be important to the agency's performance of its
statutory functions. Medical records, however, contain personal details
concerning the lives of employees. Due to the substantial personal privacy
interests involved, OSHA authority to gain access to personally
identifiable employee medical information will be exercised only after the
agency has made a careful determination of its need for this information,
and only with appropriate safeguards to protect individual privacy. Once
this information is obtained, OSHA examination and use of it will be
limited to only that information needed to accomplish the purpose for
access. Personally identifiable employee medical information will be
retained by OSHA only for so long as needed to accomplish the purpose for
access, will be kept secure while being used, and will not be disclosed to
other agencies or members of the public except in narrowly defined
circumstances. This section establishes procedures to implement these
policies.

(b) Scope and application. (1) Except as provided in paragraphs
(b) (3) through (6) below, this section applies to all requests by OSHA
personnel to obtain access to records in order to examine or copy
personally identifiable employee medical information, whether or not
pursuant to the access provisions of 29 CFR 1910.1020(e).

(2) For the purposes of this section, “personally identifiable employee
medical information” means employee medical information accompanied by
either direct identifiers (name, address, social security number, payroll
number, etc.) or by information which could reasonably be used in the
particular circumstances indirectly to identify specific employees (e.g.,
exact age, height, weight, race, sex, date of initial employment, job
title, etc.).

(3) This section does not apply to OSHA access to, or the use of,
aggregate employee medical information or medical records on individual
employees which is not in a personally identifiable form. This section
does not apply to records required by 29 CFR part 1904, to death
certificates, or to employee exposure records, including biological
monitoring records treated by 29 CFR 1910.1020(c)(5) or by specific
occupational safety and health standards as exposure records.

(4) This section does not apply where OSHA compliance personnel conduct
an examination of employee medical records solely to verify employer
compliance with the medical surveillance recordkeeping requirements of an
occupational safety and health standard, or with 29 CFR 1910.1020. An
examination of this nature shall be conducted on-site and, if requested,
shall be conducted under the observation of the recordholder. The OSHA
compliance personnel shall not record and take off-site any information
from medical records other than documentation of the fact of compliance or
non-compliance.

(5) This section does not apply to agency access to, or the use of,
personally identifiable employee medical information obtained in the
course of litigation.

(6) This section does not apply where a written directive by the
Assistant Secretary authorizes appropriately qualified personnel to
conduct limited reviews of specific medical information mandated by an
occupational safety and health standard, or of specific biological
monitoring test results.

(7) Even if not covered by the terms of this section, all medically
related information reported in a personally identifiable form shall be
handled with appropriate discretion and care befitting all information
concerning specific employees. There may, for example, be personal privacy
interests involved which militate against disclosure of this kind of
information to the public ( See, 29 CFR 70.26 and 70a.3).

(c) Responsible persons —(1) Assistant Secretary. The
Assistant Secretary of Labor for Occupational Safety and Health (Assistant
Secretary) shall be responsible for the overall administration and
implementation of the procedures contained in this section, including
making final OSHA determinations concerning:

(i) Access to personally identifiable employee medical information
(paragraph (d)), and

(ii) Inter-agency transfer or public disclosure of personally
identifiable employee medical information (paragraph (m)).

(2) OSHA Medical Records Officer. The Assistant Secretary shall
designate an OSHA official with experience or training in the evaluation,
use, and privacy protection of medical records to be the OSHA Medical
Records Officer. The OSHA Medical Records Officer shall report directly to
the Assistant Secretary on matters concerning this section and shall be
responsible for:

(i) Making recommendations to the Assistant Secretary as to the
approval or denial of written access orders (paragraph (d)),

(ii) Assuring that written access orders meet the requirements of
paragraphs (d) (2) and (3) of this section,

(iii) Responding to employee, collective bargaining agent, and employer
objections concerning written access orders (paragraph (f)),

(iv) Regulating the use of direct personal identifiers (paragraph
(g)),

(v) Regulating internal agency use and security of personally
identifiable employee medical information (paragraphs (h) through
(j)),

(vi) Assuring that the results of agency analyses of personally
identifiable medical information are, where appropriate, communicated to
employees (paragraph (k)),

(vii) Preparing an annual report of OSHA's experience under this
section (paragraph (l)), and

(viii) Assuring that advance notice is given of intended inter-agency
transfers or public disclosures (paragraph (m)).

(3) Principal OSHA Investigator. The Principal OSHA Investigator
shall be the OSHA employee in each instance of access to personally
identifiable employee medical information who is made primarily
responsible for assuring that the examination and use of this information
is performed in the manner prescribed by a written access order and the
requirements of this section (paragraphs (d) through (m). When access is
pursuant to a written access order, the Principal OSHA Investigator shall
be professionally trained in medicine, public health, or allied fields
(epidemiology, toxicology, industrial hygiene, biostatistics,
environmental health, etc.).

(d) Written access orders —(1) Requirement for written access
order. Except as provided in paragraph (d)(4) below, each request by
an OSHA representative to examine or copy personally identifiable employee
medical information contained in a record held by an employer or other
recordholder shall be made pursuant to a written access order which has
been approved by the Assistant Secretary upon the recommendation of the
OSHA Medical Records Officer. If deemed appropriate, a written access
order may constitute, or be accompanied by, an administrative
subpoena.

(2) Approval criteria for written access order. Before approving
a written access order, the Assistant Secretary and the OSHA Medical
Records Officer shall determine that:

(i) The medical information to be examined or copied is relevant to a
statutory purpose and there is a need to gain access to this personally
identifiable information,

(ii) The personally identifiable medical information to be examined or
copied is limited to only that information needed to accomplish the
purpose for access, and

(iii) The personnel authorized to review and analyze the personally
identifiable medical information are limited to those who have a need for
access and have appropriate professional qualifications.

(3) Content of written access order. Each written access order
shall state with reasonable particularity:

(i) The statutory purposes for which access is sought,

(ii) A general description of the kind of employee medical information
that will be examined and why there is a need to examine personally
identifiable information,

(iii) Whether medical information will be examined on-site, and what
type of information will be copied and removed off-site,

(iv) The name, address, and phone number of the Principal OSHA
Investigator and the names of any other authorized persons who are
expected to review and analyze the medical information.

(v) The name, address, and phone number of the OSHA Medical Records
Officer, and

(vi) The anticipated period of time during which OSHA expects to retain
the employee medical information in a personally identifiable form.

(4) Special situations. Written access orders need not be
obtained to examine or copy personally identifiable employee medical
information under the following circumstances:

(i) Specific written consent. If the specific written consent of
an employee is obtained pursuant to 29 CFR 1910.1020(e)(2)(ii), and the
agency or an agency employee is listed on the authorization as the
designated representative to receive the medical information, then a
written access order need not be obtained. Whenever personally
identifiable employee medical information is obtained through specific
written consent and taken off-site, a Principal OSHA Investigator shall be
promptly named to assure protection of the information, and the OSHA
Medical Records Officer shall be notified of this person's identity. The
personally identifiable medical information obtained shall thereafter be
subject to the use and security requirements of paragraphs (h) through (m)
of this section.

(ii) Physician consultations. A written access order need not be
obtained where an OSHA staff or contract physician consults with an
employer's physician concerning an occupational safety or health issue. In
a situation of this nature, the OSHA physician may conduct on-site
evaluation of employee medical records in consultation with the employer's
physician, and may make necessary personal notes of his or her findings.
No employee medical records, however, shall be taken off-site in the
absence of a written access order or the specific written consent of an
employee, and no notes of personally identifiable employee medical
information made by the OSHA physician shall leave his or her control
without the permission of the OSHA Medical Records Officer.

(e) Presentation of written access order and notice to employees.
(1) The Principal OSHA Investigator, or someone under his or her
supervision, shall present at least two (2) copies each of the written
access order and an accompanying cover letter to the employer prior to
examining or obtaining medical information subject to a written access
order. At least one copy of the written access order shall not identify
specific employees by direct personal identifier. The accompanying cover
letter shall summarize the requirements of this section and indicate that
questions or objections concerning the written access order may be
directed to the Principal OSHA Investigator or to the OSHA Medical Records
Officer.

(2) The Principal OSHA Investigator shall promptly present a copy of
the written access order (which does not identify specific employees by
direct personal identifier) and its accompanying cover letter to each
collective bargaining agent representing employees whose medical records
are subject to the written access order.

(3) The Principal OSHA Investigator shall indicate that the employer
must promptly post a copy of the written access order which does not
identify specific employees by direct personal identifier, as well as post
its accompanying cover letter ( See, 29 CFR
1910.1020(e)(3)(ii)).

(4) The Principal OSHA Investigator shall discuss with any collective
bargaining agent and with the employer the appropriateness of individual
notice to employees affected by the written access order. Where it is
agreed that individual notice is appropriate, the Principal OSHA
Investigator shall promptly provide to the employer an adequate number of
copies of the written access order (which does not identify specific
employees by direct personal identifier) and its accompanying cover letter
to enable the employer either to individually notify each employee or to
place a copy in each employee's medical file.

(f) Objections concerning a written access order. All employee,
collective bargaining agent, and employer written objections concerning
access to records pursuant to a written access order shall be transmitted
to the OSHA Medical Records Officer. Unless the agency decides otherwise,
access to the records shall proceed without delay notwithstanding the
lodging of an objection. The OSHA Medical Records Officer shall respond in
writing to each employee's and collective bargaining agent's written
objection to OSHA access. Where appropriate, the OSHA Medical Records
Officer may revoke a written access order and direct that any medical
information obtained by it be returned to the original recordholder or
destroyed. The Principal OSHA Investigator shall assure that such
instructions by the OSHA Medical Records Officer are promptly
implemented.

(g) Removal of direct personal identifiers. Whenever employee
medical information obtained pursuant to a written access order is taken
off-site with direct personal identifiers included, the Principal OSHA
Investigator shall, unless otherwise authorized by the OSHA Medical
Records Officer, promptly separate all direct personal identifiers from
the medical information, and code the medical information and the list of
direct identifiers with a unique identifying number for each employee. The
medical information with its numerical code shall thereafter be used and
kept secured as though still in a directly identifiable form. The
Principal OSHA Investigator shall also hand deliver or mail the list of
direct personal identifiers with their corresponding numerical codes to
the OSHA Medical Records Officer. The OSHA Medical Records Officer shall
thereafter limit the use and distribution of the list of coded identifiers
to those with a need to know its contents.

(h) Internal agency use of personally identifiable employee medical
information. (1) The Principal OSHA Investigator shall in each
instance of access be primarily responsible for assuring that personally
identifiable employee medical information is used and kept secured in
accordance with this section.

(2) The Principal OSHA Investigator, the OSHA Medical Records Officer,
the Assistant Secretary, and any other authorized person listed on a
written access order may permit the examination or use of personally
identifiable employee medical information by agency employees and
contractors who have a need for access, and appropriate qualifications for
the purpose for which they are using the information. No OSHA employee or
contractor is authorized to examine or otherwise use personally
identifiable employee medical information unless so permitted.

(3) Where a need exists, access to personally identifiable employee
medical information may be provided to attorneys in the Office of the
Solicitor of Labor, and to agency contractors who are physicians or who
have contractually agreed to abide by the requirements of this section and
implementing agency directives and instructions.

(4) OSHA employees and contractors are only authorized to use
personally identifiable employee medical information for the purposes for
which it was obtained, unless the specific written consent of an employee
is obtained as to a secondary purpose, or the procedures of paragraphs (d)
through (g) of this section are repeated with respect to the secondary
purpose.

(5) Whenever practicable, the examination of personally identifiable
employee medical information shall be performed on-site with a minimum of
medical information taken off-site in a personally identifiable form.

(i) Security procedures. (1) Agency files containing personally
identifiable employee medical information shall be segregated from other
agency files. When not in active use, files containing this information
shall be kept secured in a locked cabinet or vault.

(2) The OSHA Medical Records Officer and the Principal OSHA
Investigator shall each maintain a log of uses and transfers of personally
identifiable employee medical information and lists of coded direct
personal identifiers, except as to necessary uses by staff under their
direct personal supervision.

(3) The photocopying or other duplication of personally identifiable
employee medical information shall be kept to the minimum necessary to
accomplish the purposes for which the information was obtained.

(4) The protective measures established by this section apply to all
worksheets, duplicate copies, or other agency documents containing
personally identifiable employee medical information.

(5) Intra-agency transfers of personally identifiable employee medical
information shall be by hand delivery, United States mail, or equally
protective means. Inter-office mailing channels shall not be used.

(j) Retention and destruction of records. (1) Consistent with
OSHA records disposition programs, personally identifiable employee
medical information and lists of coded direct personal identifiers shall
be destroyed or returned to the original recordholder when no longer
needed for the purposes for which they were obtained.

(2) Personally identifiable employee medical information which is
currently not being used actively but may be needed for future use shall
be transferred to the OSHA Medical Records Officer. The OSHA Medical
Records Officer shall conduct an annual review of all centrally-held
information to determine which information is no longer needed for the
purposes for which it was obtained.

(k) Results of an agency analysis using personally identifiable
employee medical information. The OSHA Medical Records Officer shall,
as appropriate, assure that the results of an agency analysis using
personally identifiable employee medical information are communicated to
the employees whose personal medical information was used as a part of the
analysis.

(l) Annual report. The OSHA Medical Records Officer shall on an
annual basis review OSHA's experience under this section during the
previous year, and prepare a report to the Assistant Secretary which shall
be made available to the public. This report shall discuss:

(1) The number of written access orders approved and a summary of the
purposes for access,

(2) The nature and disposition of employee, collective bargaining
agent, and employer written objections concerning OSHA access to
personally identifiable employee medical information, and

(3) The nature and disposition of requests for inter-agency transfer or
public disclosure of personally identifiable employee medical
information.

(m) Inter-agency transfer and public disclosure. (1) Personally
identifiable employee medical information shall not be transferred to
another agency or office outside of OSHA (other than to the Office of the
Solicitor of Labor) or disclosed to the public (other than to the affected
employee or the original recordholder) except when required by law or when
approved by the Assistant Secretary.

(2) Except as provided in paragraph (m)(3) of this section, the
Assistant Secretary shall not approve a request for an inter-agency
transfer of personally identifiable employee medical information, which
has not been consented to by the affected employees, unless the request is
by a public health agency which:

(i) Needs the requested information in a personally identifiable form
for a substantial public health purpose,

(ii) Will not use the requested information to make individual
determinations concerning affected employees which could be to their
detriment,

(iii) Has regulations or established written procedures providing
protection for personally identifiable medical information substantially
equivalent to that of this section, and

(iv) Satisfies an exemption to the Privacy Act to the extent that the
Privacy Act applies to the requested information ( See, 5 U.S.C.
552a(b); 29 CFR 70a.3).

(3) Upon the approval of the Assistant Secretary, personally
identifiable employee medical information may be transferred to:

(i) The National Institute for Occupational Safety and Health (NIOSH)
and

(ii) The Department of Justice when necessary with respect to a
specific action under the Occupational Safety and Health Act.

(4) The Assistant Secretary shall not approve a request for public
disclosure of employee medical information containing direct personal
identifiers unless there are compelling circumstances affecting the health
or safety of an individual.

(5) The Assistant Secretary shall not approve a request for public
disclosure of employee medical information which contains information
which could reasonably be used indirectly to identify specific employees
when the disclosure would constitute a clearly unwarranted invasion of
personal privacy ( See, 5 U.S.C. 552(b)(6); 29 CFR 70.26).

(6) Except as to inter-agency transfers to NIOSH or the Department of
Justice, the OSHA Medical Records Officer shall assure that advance notice
is provided to any collective bargaining agent representing affected
employees and to the employer on each occasion that OSHA intends to either
transfer personally identifiable employee medical information to another
agency or disclose it to a member of the public other than to an affected
employee. When feasible, the OSHA Medical Records Officer shall take
reasonable steps to assure that advance notice is provided to affected
employees when the employee medical information to be transferred or
disclosed contains direct personal identifiers.

[45 FR 35294, May 23, 1980; 45 FR 54334, Aug. 15, 1980, as amended at
71 FR 16674, Apr. 3, 2006]

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